The original action was brought by the defendant in error, under the statute “ requiring compensation for causing death by wrongful act, neglect or default.” Swan’s Rev. Stat. 707. His intestate was a passenger on board a steamboat belonging to the plaintiffs in error, which was navigating the Ohio river from Wheeling to a point thirty miles below; and in attempting to land him at Bellaire, in Belmont county, he was drowned, through the wrongful act, neglect, and default of the plaintiffs in error, as the petition below avers.
The original petition in the court of common pleas stated that, “ at the time said deceased was drowned, the said steamboat was in the channel of said river, and near the middle thereof.” But, in the district court, into which the case came by appeal, the plaintiff b'elow obtained leave, by consent of defendants, to amend his petition, so as to make the foregoing averment read thus: “ That at the time said deceased was drowned, the said steamboat was in said river, inside of low-water mark, on the Ohio shore, within the county of Belmont, and State of Ohio.”
The record states that this amendment was accordingly made, and that “ the defendants, on leave, and by consent of the plaintiffs, filed an amended answer to said petition. The bill of exceptions shows that the cause came on to be tried upon the issues made by the amended petition of the plaintiff and the answer of the defendants thereto.
It is shown by the bill of exceptions that, “ there being evidence to the jury tending to prove that the said James G-. Hubbard, deceased, fell from the said boat into the said Ohio River, on the Virginia side of the bottom of the
Each of these instructions the district court declined to give; and, instead thereof, charged the jury to the effect, “ that if the said Hubbard was drowned on the Virginia side of ordinary or common low-water mark, their verdict should be for the defendants.”
The jury found for the plaintiff below. The defendants moved for a new trial, and, their motion having been overruled, judgment was entered on the verdict.
The errors assigned are predicated on the supposed mistake of the law of the case by the district court, in refusing to charge the jury as requested by the defendant below, and in overruling a motion for a new trial.
As the right of action in this case is given solely by statute, and as this statute can have no extra-territorial force, it follows that unless the cause of action occured within this state, the defendants were entitled to a verdict.
If, then, “the natural bank,” or “the bottom of the natural bank ” of the Ohio River, on its northwest side, is the territorial limit of the State of Ohio, the district court erred in refusing to give the instructions asked for; but if otherwise, not. At least, it is clear that the refusal to charge as requested, and the instructions actually given, furnish no just cause of complaint to the plaintiff in error, if the territorial limits of Ohio extend as far as to ordinary low-water mark on the Ohio side of the river.
It-does not become necessary, in this case, to determine whether the middle of the Ohio River, “ the f.lum medium
This decision has been acquiesced in by the courts of Virginia. In the case of Commonwealth v. Garner et al., 3 Graft. Rep. 655, a majority of the general court of that state, upon a very full examination of the subject, recognized the authority and propriety of the decision in Ilandly’s Lessee v. Anthony.
And the construction thus given to the Virginia deed of cession has been uniformly sanctioned and affirmed by the courts of this state. In Lessee of McCullock v. Aten, 2 Ohio Rep. 308, the court say: “ The state is bounded by the Ohio River ; but it can scarcely be supposed that' the beach, below the break of the bank, is not within her jurisdiction. In the case of llandly’s Lessee v. Anthony, this doctrine is distinctly recognized by the supreme court of the United States, as being a rule of boundary. And it is one to which this court have always adhered.” And in Benner’s Lessee v. Platter et al., 6 Ohio Rep. 505, it is said: “ The Ohio is a navigable river; it is moreover the boundary of state jurisdiction and sovereignty, and could only be a proper boundary for such purpose whilst each state was limited to its own side of the water.”
And in Lessee of Blanchard v. Porter et al., 11 Ohio Rep. 138, it was held, that lands on the Ohio side of the river, lying between high and low-water mark, are not common to the public as a part of the river, but belong to the adjacent proprietor whose land bounds on the river.
The construction given to the Virginia deed of cession by the supreme court of the United States, having been thus acquiesced in and acted on by the courts, both of Virginia and Ohio, may be regarded as decisive of the
And her right to the navigation of the river, and her concurrent juiisdiction over it, being unquestioned, it may well be asked, for what reasonable purpose could she have intended to retain dominion over a strip of land between the water’s edge and the adjoining states ? It would be a title productive of no practical benefit to herself, and yet subjecting the population on the northwest side of the river to the most serious and embarrassing inconvenience. The liberal and patriotic spirit which dictated the cession is itself sufficient evidence that she did not so intend. In point of fact, dominion has never been exercised by Virginia on this side of the river, since her deed of cession, but has uniformly been exercised by this state, to the line of low-water, during the whole period of her existence, and the question should nov| be regarded as settled.
"We have no hesitation in saying, that the district court did not err in refusing to give the instructions asked for; and of the instructions actually given, the plaintiff in error has no cause to complain.
It is claimed in argument, that the petition of the plaintiff below does not appear from the record to have been in fact amended in the district court, and that without such amendment it was error to give judgment for the plaintiff. It is true, that the petition, as amended, is not copied into the transcript, but the record affirms the amendment was made by consent of defendants; it states with
And for these reasons, we think no injustice is done to the plaintiffs in error by our declining to notice the objection farther.
Judgment of the district court affirmed.